New York City Department of Education, Impartial Hearing Decision

NYSED # 562356 / NYC # 218196

FINDINGS OF FACT & DECISION

Case No.: 218196

Student’s Name: [REDACTED]

(hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

(“District”)

Hearing Request by: [REDACTED]

(“Parent(s)”)

Hearing Date(s): January 26, 2022

February 10, 2022

March 3, 2022

Record Close Date: April 8, 2022

Hearing Officer: Sebastian Weiss

NAMES AND TITLES OF PERSONS WHO APPEARED:

For the Student:

[REDACTED], Attorney, [REDACTED] (“Parent Counsel”)

[REDACTED], Mother

[REDACTED], Father

[REDACTED], Supervising Clinical Neuropsychologist, [REDACTED] (“Neuropsychologist”)

[REDACTED], Orton-Gillingham Trained Reading Tutor (“Reading Tutor”)

[REDACTED], School Psychologist, [REDACTED] (“School Psychologist”)

For the Department of Education:

None.

BACKGROUND AND PROCEDURAL HISTORY

On or about September 23, 2021, the Parents filed a Due Process Complaint (“DPC”) seeking funding for the Student’s unilateral placement at [REDACTED]for the 2021-22 school year (“Unilateral Placement”), among other items of relief as discussed further below. (Ex. A).^[1]

The undersigned Impartial Hearing Officer was appointed to the above matter on November 2, 2021. A prehearing conference was conducted on November 12, 2021, and a status conference was conducted on December 8, 2021. The hearing on the merits commenced on January 26, 2022 and continued on January 21, February 10, and March 3, 2022.

ISSUES AND ARGUMENTS

PARENT CASE:

The DPC alleges, among other items, that the District failed provide the Student with a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) for the 2020-21 and 2021-22 school years. (Ex. A)

The Parents allege that the District failed to properly evaluate the Student and to develop a timely and appropriate educational program. (Id; Jan. 26 T 35)

The Student did not make progress in kindergarten and the first grade, when the Student was placed in a general education classroom at a District school (“District Placement”). (Jan. T 31)

The Unilateral Placement is appropriate because it provides the Student with the small, structured classroom and individualized supports that she needs to make progress. (Id 34)

The Student has been making meaningful progress at the Unilateral Placement during the 2021-2022 school year. (CB 4)

The relief sought by the Parents includes the following (A009; CB 11):

• • Reimbursement for the Unilateral Placement;
• • Door-to-door special transportation;
• • Reimbursement for the cost of a neuropsychological and educational assessment;
• • Reimbursement for the cost of breakfast and lunch during school days as Student would have been eligible to receive free breakfast and lunch had Student attended public school during the 2020-2021 school year.
• • Compensatory education in the form of tuition reimbursement.

Regarding the Parent’s burden of proof of showing that the Unilateral Placement is appropriate, the Parents need only to demonstrate that the requested services are designed to meet the unique needs of the student. (CB 5)

The Parents presented 27 alphabetically listed documents into evidence, as well as the Closing Brief. In addition, the Parents presented the testimony of four witnesses.

DISTRICT CASE:

The District appeared for one status conference. The District did not appear on any other hearing dates and did not otherwise present a case or any evidence.

SUMMARY OF APPLICABLE LAW

Denial of FAPE:

The IDEA is a comprehensive statutory framework established by the United States Congress to ensure that students with disabilities are afforded a FAPE. 20 U.S.C. §1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Bd. of Educ. v. Rowley, 458 U.S.176 (1982); 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student’s recommended program must also be provided in the least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

In Endrew F. v. Douglas County School District, 580 U.S. 999, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.”

Pursuant to New York Education Law §4404(1)(c), the board of education shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires the trier of fact to find that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993). In other words, preponderance of the evidence is evidence that is more convincing than the evidence offered in opposition to it. Greenwich Collieries v. Director, Office of Workers’ Compensation Programs, 990 F. 2d 730, 736 (3rd. Cir. 1993), aff’d, 512 U.S. 246 (1994).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).

Under the second prong of the Burlington/Carter test, the parents bear the burden of proving the appropriateness of the unilateral placement. See M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that unilateral placement offered an educational program designed to meet the Student’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

Regarding the placement of students with disabilities, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.6(a)(3) states: “Students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs as defined in section 200.1(ww) of this Part, in accordance with the following: (i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained. (ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement. (iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement. (iv) The management needs of such students may vary, provided that environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction.”

Regarding least restrictive environment, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.1(cc) states that “Least restrictive environment means that placement of students with disabilities in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved. The placement of an individual student with a disability in the least restrictive environment shall: (1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home.”

Compensatory Education:

Where a school system fails to provide special education or related services to a student with a disability, the student is entitled to compensatory education, “i.e., replacement of educational services the child should have received in the first place.” Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005). An award of compensatory education “should aim to place the disabled children in the same position they would have occupied but for the school district’s violations of IDEA” (Id.). Compensatory education is a remedy for “past deficiencies” therefore a finding as to whether a student was “denied a FAPE in the relevant time period is a necessary prerequisite to a compensatory education award.” Peak v. District of Columbia, 526 F. Supp. 2d 32 (D.C. Cir. 2007).

Pursuant to New York Education Law §4401(c)(1) the DOE shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires that the trier of fact to find that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993).

Unlike other standards of proof, the preponderance-of-evidence standard allows both parties to share the risk of error in a roughly equal fashion, except that when the evidence is evenly balanced, the party with the burden of persuasion must lose. Director, Office of Worker’s Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 281 (1994).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. Florence County Sch. Dist. Four v. Carter, 5 10 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252).

FINDINGS OF FACT

At the beginning of the 2021-22 school year, the Student was a REDACTED year old girl in the second grade. The disability classification indicated on the Student’s IEP is Speech or Language Impairment. (Ex. G).

The Student has been diagnosed by the Neuropsychologist with Specific Learning Disorder with impairment in reading (word reading accuracy, reading fluency) and Developmental Coordination Disorder. (Ex. F) The Neuropsychologist disagrees with the Student’s IEP disability classification. (Ex. G006)

The Student is very social and imaginative, and loves art, science and role playing. (Ex. E003)

For pre-Kindergarten, Kindergarten and first grade, the Student attended the District Placement. (Jan. 26 T 31, March T 149)

On April 20, 2021, the District conducted an Elementary School Occupational Therapy Evaluation of Function and Participation (“District OT Evaluation”), which concludes that the Student does not require Occupational Therapy (“OT”) services. The District OT Evaluation states the following:

The District OT Evaluation was requested by the Parents as part of an initial comprehensive special education assessment plan. (Ex. E001)

The Student’s classroom teacher is concerned with the Student’s reading level, her ability to sound out words, recall sight words, legibly form letters and organize writing on her page to tell a story. (Id 002)

The Student is performing below her peers in written expression and reading and is comparable to her peers in math, gym, cluster subjects and overall school attendance. The Student’s written expression, spelling, reading and handwriting are reportedly not at an appropriate level. (Id)

The Student’s teacher believes the current classroom setting does not provide adequate support because the Student needs more support and would benefit from a classroom with more teachers and less students”. (Id)

On March 8, 2021, the Parents prepared a letter to CSE 9 requesting a psychoeducational evaluation. (Ex. D)

In April 2021, an independent Neuropsychological and Educational Assessment (“Independent Neuropsychological Assessment”) was conducted by the Neuropsychologist at a cost of $5,500. (Ex. F, U)

The Independent Neuropsychological Assessment sets forth in the following placement recommendation for the Student: “Due to [the Student’s] reading and writing disorders, she needs a full-time special education environment in order to learn. She needs a placement in a school that provides a high teacher/student ratio in a small classroom with teachers trained in using a multi-sensory approach, cueing, and scaffolding, to address her learning disorders. She needs individual attention and structured repetition in order to learn. Further, [the Student] needs evidenced-based phonics instruction incorporated into her curriculum throughout the school day as she is not making progress with supplementary instruction alone. It is also essential that [the Student] receive placement in a class where she will be challenged academically and provided with instruction that matches her cognitive potential. Without this appropriate educational setting, [the Student] is at risk of falling farther behind her age peers, developing more severe disabilities, and experiencing the emotional impact caused by insufficient academic progress.” (Ex. F022)

On May 10, 2021, the District issued a psychoeducational report (“District Psychoeducational Report”), which was discussed in the Neuropsychologist’s testimony but was not presented into evidence. (Ex. Z004)

On May 19, 2021, an IEP meeting was conducted for the 2021-2022 school year (“2021 IEP Meeting”). The Student’s mother, Neuropsychologist and Reading Tutor participated in the 2021 IEP Meeting and expressed concerns regarding the Student’s suggested program. (Ex. G006) Their position is that the Student requires a specialized placement to meet her academic needs where she can receive phonics instruction throughout the school day. (Id)

An IEP was developed pursuant to the 2021 IEP Meeting (“2021 IEP”) which recommends the following: (Ex. G)

• • Placement in a NYC DOE School Non-Specialized (District 1-32);
• • Special Education Teacher Support Services (SETSS), direct service, 3 periods per week; and
• • Speech-Language Therapy, direct service, two 30 minute sessions per week.

The 2021 IEP states the following: The Student presents with mild-moderate expressive and receptive language deficits, reading difficulties, and a mild speech sound disorder. (G001) Based on the Student’s classwork, she appears to be one year behind grade level expectations. (G005) The Student’s instructional/functional levels are kindergarten for reading and 1st grade for math.(Ex. G018) The Parent, Neuropsychologist and Reading Tutor participated in the 2021 IEP Meeting and expressed their concerns regarding the Student’s program/placement. (G006)

On June 29, 2021, the Parents entered into an enrollment contract with the Unilateral Placement for the 2021-22 school year. The tuition amount indicated in the enrollment contract is $73,174, which includes Parent Association dues in the amount of $225. (Ex. J)

The Unilateral Placement’s program description states that the Unilateral Placement is “a K-12 college preparatory program dedicated to the success of students with learning disabilities.” Ex. V001) The program description further states that the Unilateral Placement’s lower school “offers the youngest students, from ages five to fifth grade, the benefit of an intimate, self-contained learning environment.” (Id) Student reports from the Unilateral Placement describe Orton-Gillingham based instruction. (Ex. M001, S001)

On August 5, 2021, the Parents issued a Ten Day Notice to the District indicating their intent to enroll the Student at the Unilateral Placement. (Ex. K) The Parents allege that the District did not respond to the Ten Day Notice. (Jan. 26 T 33)

On December 5, 2021, the Unilateral Placement issued a tuition affidavit indicating that the Parents have made partial payment towards the tuition and that there is an outstanding balance. (Ex. P)

WITNESS TESTIMONY

School Psychologist Testimony:

The Parents first presented the testimony of the School Psychologist at the Unilateral Placement. The School Psychologist’s relevant testimony at the hearing can be summarized as follows:

She is a New York State certified school psychologist with a bachelor's degree in psychology and special education, and a master's in education with an advanced certification in school psychology from CUNY Brooklyn College. (Feb. 10 T 75) She has worked as a school psychologist for 35 years, including 16 years at the Unilateral Placement. (Id)

The Unilateral Placement is a private, not for profit, college prep school with K through 12 grades for students with learning disabilities. (Id 79)

The students at the Unilateral Placement have various issues such as ADHD, processing issues, speech-language issues, and fine motor coordination issues. (Id) The curriculum is grounded in REDACTED values of equality, integrity, social responsibility. (Id)

The Unilateral Placement is licensed and accredited with the New York State Association of Independent Schools, but is not a New York State approved nonpublic school. (Id 79-80)

There are a total of 419 students at the Unilateral Placement, including 127 students at the lower school, which is where the Student is enrolled. (Id) She observes the Student regularly and consults with the staff in this regard. (Id 81-2)

The Student’s strengths are her verbal and nonverbal reasoning skills. (Id) Her weaknesses are in phonological processing and processing skills in general which negatively impacts her reading, and writing, and math skills. (Id)

Her handwriting is less developed than you would expect for the age, and she struggles with executive functioning skills, maintaining attention, initiating activities, organizing her materials at the start of the day. (Id 83) The Student is easily distracted, especially as academic demands increase. (Id) The diagnosis of developmental coordination disorder refers to the Student’s handwriting and hand motor fatigue. (Id)

There are a total of ten students and two teachers in the Student’s class. (Id) The class is a combined 1st and 2nd grade class of students with similar ages, struggles, and working in similar areas. (Id)

Reading and math are taught in smaller groups. Reading is taught in a group of 6:2, six students, two teachers. Math is in a group of 3:1. (Id 84)

The Student’s reading skills are at a beginning first grade or kindergarten level. (Id 89-90) The Student’s spelling is at a beginning 1st grade level and her reading comprehension is at a beginning kindergarten level. (Id) The Student’s listening comprehension is at a higher level. (Id) The Student’s math skills are at a kindergarten level. (Id)

The Unilateral Placement uses different teaching methodologies and supports. (Id 86) For example, the reading program is an Orton-Gillingham based program. (Id 86, 88)

The Student’s teachers and therapists at the Unilateral Placement are certified and/or licensed in New York State. (Id)

The Unilateral Placement is an appropriate placement for the Student, and the Student has made progress there. (Id 98-107)

Reading Tutor Testimony:

The Parent next presented the testimony of the Reading Tutor, whose relevant testimony included the following:

The Reading Tutor is an Orton-Gillingham certified Reading Specialist and Tutor and the owner of a private tutoring practice which has been in operation for 15 years. (Ex. AA01) She has also worked for the Department of Education as a reading specialist and as a first and second grade teacher. (Id)

In March 2021, the Reading Tutor conducted a Comprehensive Test of Phonological Processing (“CTOPP”) which entails three strands - phonemic awareness, phonemic memory, and rapid naming. (Feb. T 114-15)

The results of the CTOPP revealed that the Student has significant weaknesses in her phonological awareness and processing. (Ex. AA02)

Based on the CTOPP results, the Student has dyslexia. (Feb. T 117) The Reading Tutor also conducted the Gallistel-Ellis Test of Coding Skills, and the results indicated that the Student did not know many of the rudimentary phonics skills that she needs to be able to decode. (Id)

The DOE does not give dyslexia as a diagnosis because they don't require any of their special education teachers to be trained in Orton-Gillingham, and so they can't offer the service that the Student needs. (Id 118)

The Student was in the first grade at the time of the assessment but was not reading at the first grade level. (Id 122)

Based on the assessment, the Reading Tutor recommended that the Student receive private tutoring three times per week in order to supplement the Student’s general education program at the District Placement. (Ex. AA02-3) The tutoring services were provided by a qualified colleague. (Id)

Based on [the Student’s] CTOPP assessment and learning profile, [the Student] demonstrated that she needs placement in a full-time special education environment to learn and needs to be placed in a small classroom, with a high-student to teacher ratio where evidenced-based phonics instruction is incorporated into her curriculum throughout the school day, as she was not making progress with 1:1 tutoring intervention alone. (Id)

The Reading Tutor participated in the 2021 IEP Meeting and expressed her concerns, including that if the Student were to start second grade based upon the District’s placement recommendation, by June 2022 she would be more than two years behind and another year older. (Id)

The Student is now in the appropriate school because it provides support that she needs and which is not available at the [District Placement], or any other New York City school. (Feb. T 123)

The Student requires specialized instruction in a small classroom with Orton-Gillingham reading intervention and phonics instruction incorporated throughout the school day in order to progress, (Ex. AA03-4)

There's no place in the New York City school system where a child of average and above average intelligence and dyslexia can go for help. (Feb. T 123)

Parent Testimony:

The Parent presented the testimony of the Student’s mother, whose relevant testimony included the following:

The Student attended the District Placement for pre-K, kindergarten, and first grade (March T 149)

The Parents became concerned about [REDACTED] reading and writing difficulties during the 2019-2020 school year, when the Student was in kindergarten. (Ex. Y001)

The Student’s classroom teacher reported during a November 2019 parent-teacher conference that [REDACTED] was slow in picking up reading and writing skills. (Id)

During a parent-teacher conference in March 2020, the Student’s teacher reported that she shared the Parents’ concerns regarding the Student’s academic stagnation and that she also had concerns about the Student attending first grade in a classroom with 30 students and one teacher. (Id)

For the 2020-2021 school year, the Student began first grade one year below grade level in reading and other academic areas. (Id) The Student declined emotionally and mentally because of her academic struggles. She would hide in the closet or under the table when it was time for school. (Id 002)

By Spring of her first-grade year, the Student’s teacher asked the Parents to consider having the student repeat the first-grade and suggested that the Student be evaluated. (Id) The District did not evaluate the Student for special education services until the end of her first-grade year. Consequently, the Student did not receive any special education services during her kindergarten and first-grade year. (Id)

In March 2021, the Parents hired the Reading Tutor to tutor the Student for three hours per week for the rest of the school year. (Id 002) The Student continued to struggle with reading and writing throughout her first-grade year. (Id)

The Mother participated in the 2021 IEP Meeting, which was the first IEP meeting held for the Student. (March T 145Y; Ex. Y002)

At the 2021 IEP Meeting, raised concerns multiple times that based on what we experienced up to this point at school and knowing how general education classrooms look like, it will not meet her needs to make progress in her academic development. (March T 146-7; Ex. Y002)

The Parents researched what school would offer Orton-Gillingham based learning, would have smaller classrooms and would allow for one-on-one support when needed. The Parents identified the Unilateral Placement with the help of the Reading Tutor, who provided a list.

The Mother toured the Unilateral Placement in June 2021 (Id 147)

The Student has made progress at the Unilateral Placement and now likes attending school and doesn’t engage in negative self-talk. (Y002) Her confidence has grown and she is repeating what she has learned in school at home. (Id)

At the District Placement, the Student was provided a free lunch based on zoning and not necessarily based on the Parent’s income. (March T 152)

The Parents have paid for the tuition for the Unilateral Placement as well as for the Independent Neuropsychological Assessment. (Id 151-3)

Neuropsychologist Testimony:

The Parents next presented the testimony of the Neuropsychologist, who conducted the Independent Neuropsychological Assessment. (Ex. Z, F)

The Neuropsychologist is a licensed Psychologist in the State of New York with Master’s and Doctorate degrees who has conducted over 200 neuropsychological evaluations in clinical setting, 400 evaluations in research settings, and has participated in over 50 IEP meetings. (Ex. Z001)

In May 2021, the Independent Neuropsychological Assessment was conducted in person over four days. (Id 002) The purpose of the Independent Neuropsychological Assessment was to understand the Student’s learning profile in order to determine if there were any barriers that were interfering with her learning. (March T 139)

The Independent Neuropsychological Assessment determined that [the Student] meets the diagnostic criteria for Specific Learning Disorder with impairment in Reading (word reading accuracy, reading fluency), which is the Student’s version of dyslexia. (March T 138; Ex. Z003)

The Student also met the criteria for Developmental Coordination Disorder, affecting her ability to use her visual and motor coordination appropriately. (Id)

The Neuropsychologist participated in the 2021 IEP meeting and discussed the results of the Independent Neuropsychological Assessment. (Id) In addition, she reviewed and disagrees with the District Psychoeducational Report and with the 2021 IEP. (Id) The District Psychoeducational Report did not provide an accurate picture of the Student’s cognitive abilities, needs and level of functioning at the time. (Id)

The Neuropsychologist expressed concern that the District’s placement recommendation would not provide the Student with the level of support and academic interventions needed to address her learning deficits. (Z005)

The Neuropsychologist recommended that the Student be placed in a classroom with access to phonics-based instruction throughout the school day that was incorporated into the curriculum, which is not consistent with the District’s recommended general education placement with several different types of pull-out services. (March T 143; Ex. F022) The Neuropsychologist did not believe that the general education placement made sense for the Student. (Id)

The Unilateral Placement is appropriate for the Student because it includes the following attributes: a very small supportive student teacher ratio, therapeutic supports, appropriate peer grouping, executive skills training, and related services. (Ex. Z005)

DECISION

Tuition reimbursement claims are subject to the Burlington/Carter analysis described above. Regarding the first prong of the Burlington/Carter analysis, I find that the District has not met its burden of proof regarding whether the Student was provided a FAPE for the 2021-22 school year, primarily because the District did not present a case in this regard. By comparison, I find that the Parents have presented sufficient evidence and testimony to prevail by a preponderance of the evidence standard on this issue.

For example, the evidence indicates that the Student’s academic performance was not at grade level while attending the District Placement, and that the Student was not properly evaluated by the District. The District OT evaluation concludes that the Student does not require OT services, but suggests that the Student requires support in other areas. The District also conducted a Psychoeducational Evaluation, which was not presented into evidence and whose reliability was called into question by the Neuropsychologist. According to the District OT Evaluation, the Student’s teacher at the District Placement expressed concerns about the appropriateness of the District Placement. The District OT Evaluation and 2021 IEP indicate that the student benefits from individualized and small group instruction.

With respect to the second prong of the Burlington/Carter analysis, the issue presented for adjudication is whether the Unilateral Placement was appropriate. Under the Burlington/Carter analysis, the Parent bears the burden of proof in this regard.

I find that the Parent has presented sufficient evidence and witness testimony regarding the appropriateness of the Unilateral Placement for the 2021-22 school year, including that the Unilateral Placement was designed to meet the Student’s unique special education needs and reasonably calculated to enable the Student to make progress appropriate in light of the Student’s circumstances.

For example, the Neuropsychologist and Reading Tutor both conducted assessments of the Student and concluded that the Student requires a specialized program with a focus on phonics and Orton-Gillingham based instruction. The evidence indicates that the Unilateral Placement is designed for students with learning disabilities and offers a smaller class size and more individualized attention as compared to District Placement. The evidence also indicates that the Unilateral Placement also offers Orton-Gillingham based instruction. This is consistent with the placement recommendations of the Neuropsychologist and Reading Tutor, who testified that the Unilateral Placement is appropriate. The School Psychologist also testified that the Unilateral Placement is appropriate.

By comparison, the District did not present a case regarding the appropriateness of the Unilateral Placement.

In concluding the second prong of the Burlington/Carter analysis, I find that the Parents have satisfied their burden of proof regarding the appropriateness of the Unilateral Placement for the 2021-22 school year by a preponderance of the evidence.

With respect to the third prong of the Burlington/Carter analysis, which considers the equities of the case, I find that the equities favor the Parent, including the following:

Based on feedback from the Student’s teachers, the Parents requested that the Student be evaluated and paid for private tutoring from the Reading Tutor as well as for the Independent Neuropsychological Assessment.

The Student’s mother participated in the 2021 IEP Meeting and expressed concerns regarding the Student’s educational program/placement. The Neuropsychologist and Reading Tutor also participated in the 2021 IEP Meeting and expressed similar concerns.

The Parents timely issued a Ten Day Notice to the District, and the Parents allege that the District did not respond to this notice. The District also did not appear for the hearing.

In concluding the Burlington/Carter analysis, I find that the Parents are entitled to reimbursement for the Unilateral Placement.

Regarding the reimbursement amount, the Parents have presented a tuition affidavit from the Unilateral Placement dated December 6, 2021, which indicates that the Parents have made partial payment towards the tuition and that there is an outstanding balance. (Ex. P) The mother testified that the Parents have paid all of the tuition in monthly installments. Accordingly, the Parents would need to provide proof of payment of the outstanding balance.

Regarding the Parent’s claim for reimbursement for the Independent Neuropsychological Assessment, I find that the Parents are entitled to reimbursement based on the facts presented. The District did not present any evidence indicating that the Student was properly evaluated previously, and the Neuropsychologist testified that the District Psychoeducational Evaluation was not reliable.

The Parents are also seeking reimbursement for the Student’s lunches on the basis that Student would have been eligible to receive free breakfast and lunch had Student attended public school during the 2020-2021 school year. (Ex. A009) The Parents have presented grocery bills from amazon.com as evidence to support this claim. (Ex. V; CB 10) This claim is denied for the following reasons.

Regarding applicable legal precedent, the Parent’s closing brief states that: “Courts have, at times, awarded reimbursement to parents of students with disabilities for the cost of breakfast and lunch when their children attend private school with DOE funding due to their disability.” (CB 10)

The Parents cite the case of C.D. v. New York City Department of Education, 05 Civ. 7945 (SHS) (S.D.N.Y. Feb. 11, 2009). The Parents do not cite any other cases. I have reviewed this case and find that it does not sufficiently support an award of reimbursement for Amazon.com grocery bills, either on its law or its facts. The Parents also have not presented sufficient evidence that the Student would have qualified for free school lunches at a District public school, as required by the REDACTED. case.

The Parents are also seeking door to door special transportation for the Student. However, I find that the Parents have not presented sufficient evidence regarding the Student’s transportation needs.

Finally, the Parents have also presented a claim for compensatory education as an alternative basis for tuition reimbursement. (Ex. A009; CB 9)

However, I do not find that the Parents have presented a valid compensatory education claim to the extent that claims relating to funding for a Unilateral Placement are subject to the Burlington/Carter analysis.

The Parent submitted into evidence a memorandum issued by the New York State Education Department dated June 2021 titled Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic. (Ex. I)

Notably, this document does not mention funding for a Unilateral Placement as a form of compensatory services. For example, this document states: “If appropriate, compensatory services could be provided in a number of ways, such as extending the school day, providing tutoring before and after school, or providing additional services during regular school hours.” (Ex. I-4) In addition, this claim is rendered moot to the extent that the Parents have been awarded reimbursement for the cost of the Unilateral Placement pursuant to this decision.

The DPC also alleges a denial of FAPE for the 2020-21 school year. However, the evidence, witness testimony and relief requested relates primarily to the 2021-22 school year. Although the burden of proof with respect to an alleged denial of FAPE rests with the District, the Parents have not necessarily presented sufficient evidence or witness testimony regarding a denial of FAPE for the 2020-21 school year. In addition, the claim of a denial of FAPE for the 2020-21 school year is rendered moot to the extent that this decision finds a denial of FAPE for the 2021-22 school year.

ORDER

Based upon the foregoing, it is hereby:

• • ORDERED THAT, the District did not provide the Student a FAPE for the 2021-22 school year; and
• • ORDERED THAT, upon presentation of proof of payment, the District shall reimburse the Parents for the Student’s tuition only at the Unilateral Placement for the 2020-21 school year (the reimbursement amount shall not include Parent Association dues or other fees);
• • ORDERED THAT, upon presentation of proof of payment, the District shall reimburse the Parents for the cost of the Independent Neuropsychological Assessment.

SO ORDERED

DATED: June 5, 2022

/s/ Sebastian Weiss

Sebastian Weiss

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

PARENT EVIDENCE:

LETTER

DATE

DOCUMENT

No. Of Pages

A

9/23/21

Hearing Request

10

B

4/19/18

Letter from Office of Special Education Programs to [REDACTED]: Compensatory Services

2

C

3/7/21

CTOPP-2 Results

3

D

3/8/21

Letter to DOE: Request for Psycho-educational Evaluation

1

E

4/16/21

Elementary School Occupational Therapy: evaluation of Function and Participation

15

F

5/14/21

Neuropsychological Evaluation

30

G

5/19/21

IEP

20

H 5/27/21 Correspondence with DOE: Neuropsychological Evaluation and Teacher Inquiry 1

I June 2021 NYSED Memorandum: Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic 8

J 6/29/21 [REDACTED]Enrollment Contract 5

K 8/25/21 Ten Day Notice 4

L 8/25/21 Ten Day Notice Confirmation 1

M 10/8/21 [REDACTED]: Note from Reading Group Teacher 2

N November 2021 [REDACTED]Progress Report 1

O 12/1/21 [REDACTED]Attendance 1

P 12/6/21 [REDACTED]Tuition Affidavit 1

Q 2021-2022 [REDACTED]Mid-Year Language Therapy Report 1 R 2021-2022 [REDACTED]Mid-Year Student Profile Report 3

S 2021-2022 [REDACTED] Mid-Year Reading Report 3

T 2021-2022 [REDACTED] Class Schedule 12

U Various Dates Invoice for Neuropsychological Services 1

V Various Dates Proof of Payment: Breakfast and Lunch 17

W Undated [REDACTED] Program Description 2

X Undated NYC DOE Academic Recovery- Special Education Guidance 8

Y 1/25/22 Affidavit of Testimony: [REDACTED] 3

Z 2/9/22 Affidavit of Testimony: [REDACTED] 6

AA 2/10/22 Affidavit of Testimony: [REDACTED] 4

DISTRICT EVIDENCE:

NONE.

Footnotes

[1] Exhibits, or “Ex.”, shall be referred to as follows: “P” for Parent Exhibits, which are otherwise indicated alphabetically; “D” for District Exhibits, which are otherwise indicated numerically; “CB” for closing brief; “IHO” for any Impartial Hearing Officer’s exhibits; and “T” for the hearing transcript.